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HON. J. P. BENJAMIN, OF LA., 

DBUVBBBD IN 

SENATE OF UNITED STATES ON THURSDAY, MARCH 11, 1858. 



SLAVERY PROTECTED 



COMMON LAW OF THE NEW WORLD. 





Vindication of the Supreme Court of the U. S, 



WASHINGTON: 

&. S. GIDEON, PRINTER. 

1858. 



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_ Mi*. BENJAMIN. Mr. President, after the very able and eloquent 
discourse of the Senator from Missouri, [Mr. Polk,] if I had regard 
simply to my own reputation in giving utterance to the thoughts which 
I have conceived upon the subject now before us, I should better consult 
its interests by seeking another occasion for addressing the Senate; but 
I am admonished by the increasing impatience of the Senate, by the 
desire, not only in this Chamber, but in the public at large, to arrive 
at an early vote on this subject, that all personal considerations must 
be made to give way, and that each of us must do his duty as promptly 
as he can. 

Mr. President, the issue to which the American people have been 
looking forward for some years past, with almost instinctive apprehen- 
sion, is now before us. The urgent, the imperative necessity for itg 
decision is upon us. Again is a slaveholding State demanding admis- 
sion into the Union, and again is that admission opposed by a large 
majority of the Senators and Representatives of the non-slaveholding 
States of the Confederacy. I am aware that every effort is being made 
to conceal the trucmotive for this hostility. Pretexts about the irregu- 
larity of the territorial government, charges of fraud and deception, 
vehement asseverations of a disregard of the popular will in the forma- 
tion of the State constitution — every pretext, every cause, every motive 
that the ingenuity of their ablest«and most practiced debaters can 
suggest, have been brought forward as the grounds of this hostility. 
But, sir, as the discussion has progressed, as the excitement of debate 
has overcome the cold teachings of prudence, various Senators have 
made admissions; the truth, which had been concealed behind a cloud, 
has become apparent to us all, and it is now boldly avowed that Kansas 
shall never be admitted as a slaveholding State into the Confederacy, 
not even, to use the words of the Senator from Maine, [Mr. Fessenden,] 
if the whole people of the Territory should establish a constitution 
recognising that institution. 

Opinions thus maturely formed, thus openly avowed, are not to be 
affected by any argument that I can hope to offer. But, sir, as long as 
the Constitution of my country endures, as long as I have a constitu- 
tional duty to perform upon this floor, I feel myself under the most 
sacred of all obligations to protest against the doctrines thus asserted, 



4 

and to expose, as far as I can, the fallacies by which those doctrines 
are upheld. 

I have still, sir, another duty to perform. As a member of that 
committee which is charged in the Senate with the examination of all 
subjects touching the judiciary -of the country, it is my duty to make 
answer to those charges which are brought against the highest judges 
of the land with a violence, a recklessness, and, I regret to be compelled 
to add, with a disregard of truth and decency which will yet bring down 
upon their authors the indignant condemnation of their outraged coun- 
trymen. 

Mr. President, the whole subject of slavery, so far as it is involved 
in the issue now before the country, is narrowed down at last to a con- 
troversy on the solitary point, whether it be competent for the Congress 
of the United States, directly or indirectly, to exclude slavery from the 
Territories of the Union. The Supreme Court of the United States 
have given a negative answer to this proposition, and it shall be my 
first effort to support that negation by argument, independently of the 
authority of the decision. 

It seems to me that tbe radical, fundamental error which underlies 
the argument in affirmation of this power, is the assumption that 
slavery is the creature of the statute law of the several States where it 
is established; that it has no existence outside of the limits of those 
States; that slaves are not property beyond those limits; and that prop- 
erty in slaves is neither recognised nor protected by the Constitution of 
the United States, nor by international law. I controvert all these 
propositions, and shall proceed at once to my argument; 

Mr. President, the thirteen colonies which, on the 4th of July, 1776, 
asserted their independence, were British colonies, governed by British 
laws. Our ancestors, in their emigration to this country, brought with 
them the common law of England as their birthright. They adopted 
its principles for their government so far as it was not incompatible 
with the peculiarities of their situation in a rude and unsettled country. 
Great Britain then having the sovereignty over the colonies, possessed 
undoubted power to regulate their institutions, to control their com- 
merce, and to give laws to thei* intercourse, both with the mother 
country and the other nations of the earth. If I can show, as I hope 
to be able to establish to the satisfaction of the Senate, that the nation 
thus exercising sovereign power over these thirteen colonies did establish 
slavery in them, did maintain and protect the institution, did originate 
and carry on the slave trade, did support and foster that trade, that it 
forbade the colonies permission either to emancipate or export their 
slaves, that it prohibited them from inaugurating any legislation in 
diminution or discouragement of the institution — nay, sir, more, if at 
the date of our Revolution I can show that African slavery existed in 
England as it did on this continent, if I can show that slaves were sold 
upon the slave mart, in the Exchange and other public places of resort 
in the city of London as they were on this continent, then I shall not 
hazard too much in the assertion that slavery was the common law of 
the thirteen States of the Confederacy at the time they burst the bonds 
that united them to the mother country. 






The first permanent colonial settlement made on this continent by 
the English was made under a charter granted in 1606, in the fourth 
year of James I, to Sir Thomas Gates and his associates. I leave out 
ot view, as a matter of course, the few abortive attempts that were 
made towards the close of the sixteenth century by Bit Gilbert Hum- 
phreys m the north, and by Sir Walter Raleigh in the State which is 
represented by my friend from Virginia. Those attempts were all 
abortive. It is familiar to us all how disastrously thev terminated I 
say the first permanent settlement made under 'the authority of the 
.British Crown on this continent, was under the charter of 1 600 That 
charter was subsequently superseded upon quo warranto, issued at the 
instance of the British Crown, and in 1620 another charter took its 
place, granted to the Duke of Lenox and his associates, who were in- 
corporated under the name of the Plvmouth Companv. To that com- 
pany the coast was granted from the fortieth to the forty-eighth decree 
ot north latitude. This charter was followed by mob&mire grants to 
ditferent noblemen and companies, until the entire coast was disposed 

J n \ b , f ' t0 th r Dllke of York was g rar *ted all the territory as far 
south as Delaware Bay: and in 1663 and 1666, to Lord Clarendon and 
his associates the entire coast of the continent, from the twentv-ninth 
degree ot north latitude to that celebrated line of 36° 30' north since 
so famous m the history of our intestine disputes. Thus was conveyed 
the whole coast comprised within our present limits 

Prior to this very first settlement, the slave trade' had been inaugu- 
rated and established in Great Britain. The first notice which history 
gives us ot it is the grant of a charter by Q*effia Elizabeth, to a com- 
pany formed for the purpose of supplying slaves to the Spanish- Ameri- 
can colonies The Virgin Queen herself was a share-holder. Subse- 
quently, m 1662 under Charles II, a monopoly was created in favor 
ot a company authorized to export to the colonies three thousand slaves 
per annum ; and so valuable was this privilege considered, so great 
was the influence required for the purpose of obtaining a share in it 
that it was paced under the auspices of the Queen Dowager and the 
Duke of York. The King himself issued his proclamation, invitino 
his subjects to establish themselves on this side of the Atlantic ; and as 
an encouragement to the migration, tendered a grant of one hundred 
acres of laud for each four slaves that thev would employ in the culti- 
vation of it. r J 

The merchants of London found their trade to the slave coast very 
much cramped by this royal monopoly, granted to roval favorites ; and 
they continued to stun the ear of the Commons with loud complaints 
that they were excluded from the advantages of so prosperous a traffic; 
and in 1095 the Commons of England, in Committee of the Whole 
SSfrf'r ^^^^^Pjyof the plantations, all the sub- 
jects of Great Britain should have liberty to trade in Africa for ne- 
groes with such limits as should be prescribed by Parliament ,: 

In the 9th and 10th William III, an act was passed partially relax- 
ing this monopoly, the preamble to which states that— 

Ji^^\^S^^, and *™**«>°» ^0 ti* m&o*, and to the plantation 



6 

This partial relaxation was unsatisfactory. Petitions continued to 
pour in. In 1708 the Commons again resolved— 

"That the trade was important, and ought to be free and open to all the Queen's subjects 
trading from Great Britain.' 7 

And in 1711 they again resolved that "this trade ought to be free 
in a regulated companv ; the plantations ought to be supplied with 
negroes at reasonable 'rates ; a considerable stock was necessary for 
carrying on the trade to the best advantage, and that an export of 
£100,000 at least, in merchandise, should be annually made from Great 
Britain to Africa," Finally, in the year 1749, these repeated resolu- 
tions of the Commons, and petitions of the merchants of London, ac- 
complished the desired result. They gained their object by the passage 
of the act of 23d George II, throwing open the trade, and declaring 
"the slave trade to be very advantageous to Great Britain, and neces- 
sary for supplying the plantations and colonies thereunto belonging 
with a sufficient number of negroes at reasonable rates." 

This legislation, Mr. President, as I have said before, emanating 
from the mother country, fixed the institution upon the colonies. They 
could not resist it. All their right was limited to petition, to remon- 
strance, and to attempts at legislation at home to diminish the evil. 
Every such attempt was sternly repressed by the British Crown. 

In 1760, South Carolina passed an act prohibiting the further impor- 
tation of African slaves. The act was rejected by the Crown ; the 
Governor was reprimanded; and a circular was sent to all the Gor- 
ernors of all the colonies, warning them against presuming to coun- 
tenance such legislation. 

In 1765, a similar bill was twice read in the Assembly oi Jamaica. 
The news reached Great Britain before its final passage. Instruc- 
tions were sent out to the royal Governor; he called the House 
of Assembly before him, communicated his instructions, and forbade 
any further progress of the bill. 

In 1774, in spite of this discountenancing action of the mother 
Government, two bills passed the Legislative Assembly of Jamaica; 
and the Earl of Dartmouth, then Secretary of State, wrote to Sir Basil 
Keith, the Governor of the colpny, that " these measures had created 
alarm' to the merchants of Great Britain engaged in that branch of 
commerce ;" and forbidding him, "on pain of removal from his Gov- 
ernment, to assent to such laws." _•■ '_•''■ 

Finally, in 1775— mark the date— 1775— after the Revolutionary 
struggle had commenced, whilst the Continental Congress was in ses- 
sion, after armies had been levied, after Crown Point and Ticonderoga 
had been taken possession of by the insurgent colonists, and after the 
first blood shed in the Revolution had reddened the spring sod upon 
the green at Lexington, this same Earl of Dartmouth, in answer to a 
remonstrance from the agent of the colonies, replied: 

"We cannot allow the colonies to check or discourage in any degree a traffic so benefaciAl 
to the nation." 

I say, then, that down to the very moment when our independence 
was won, slavery, established by the statute law of England, had become 
the common law of the old thirteen colonies. 



But, sir, ray task does not end here. I desire to show you that by 
her jurisprudence, that by the decisions of her judges, and the answers 
of her lawyers to questions from the Crown and from public bodies, 
this same institution was declared to be recognised by the common law 
of England; and slaves were declared to be, in their language, mer- 
chandise, chattels, just as much private property as any other mer- 
chandise or any other chattel. 

A short time prior to the year 1713, a contract had been lormed be- 
tween Spain and a certain company, called the Royal Guinea Company, 
that had been established in France. This contract was technically 
called in those days an assiento. By the treaty of "Utrecht of the 11th 
of April, 1813, Great Britain, through her diplomatists, obtained a 
transfer of that contract. She yielded considerations for it. The ob- 
taining of that contract was greeted in England with shouts of joy. It 
was considered a triumph of diplomacy. It was followed, m the month 
of May, 1713, by a new contract in form, by which the British Govern- 
ment undertook, for the term of thirty years then next to come, to 
transport, annuallv, 4,800 slaves to the Spanish American colonies^ at 
a fixed ] >rice. Almost immediately after this new contract, a question 
arose in the English Council as to the true legal character of the slaves 
thus to be exported to the Spanish American colonies ; and, according 
to the forms of the British Constitution, the question was submitted by 
the Crown in Council to the twelve judges of England. I have their 
answer here ; it is in these words : 

"In pursuance of his Majesty's order in Council, hereunto annexed, we do humbly certify 
our opinion to be that negroes are merchandise." 

Signed by Lord Chief Justice Holt, Judge Pollexfen, and eight other 
judges of England. 

Mr. MASON. What is the date of that? 

Mr. BENJAMIN. It was immediately after the treaty of Utrecht, 
in 1713. Very soon afterwards the nascent spirit of fanaticism began 
to obtain a foothold in England ; and although large numbers of negro 
slaves were owned in Great Britain, ifcul, as I said before, were daily 
Bold on the public Exchange in London, (see 2 Haggard's Rep., p. 105,) 
questions arose as to the right of the owners to retain property in their 
slaves; and the merchants' of London, alarmed, submitted the question 
to Sir Philip Yorke, who afterwards became Lord Hardwicke, and to 
Lord Talbot, who were then the solicitor and attorney general of the 
kingdom. The question was propounded to them, "what are the 
rights of a British owner of a slave in England?" and this is the an- 
swer of those two legal functionaries. They certified that " a slave com- 
ing from the West Indies to England, with or without his master, doth 
not become free; and his master's property in him is not thereby deter- 
mined nor varied, and the master may legally compel him to return to 

the plantations." tvl-i- 

And, in 1749, the same question again came up before Sir Philip 
Torke, then Lord Chancellor of England, nnder the title of Lord Hard- 



8 

wicke, and, by a decree in chancery in the case before him, he affirmed 
the doctrine which he had uttered when he was attorney general of 
Great Britain. 

Things thus stood in England until the year 1771, when the spirit 
of fanaticism, to which I have adverted, acquiring strength, finally 
operated upon Lord Mansfield, who, by a judgment rendered in the 
case known as the celebrated Sommersett case, subverted the common 
law of England by judicial legislation, as I shall prove in an instant. I 
say it not on my own authority ; I would not be so presumptuous. The 
Senator from Maine [Mr. Fessenden] need not smile at my statement. 
I will give him higher authority than anything I can dare assert. I 
say, that in 1771 Lord Mansfield subverted the common law of England 
in the Sommersett case, and decided, not that a slave carried to England 
from the West Indies by his master thereby became free, but that, by the 
law of England, if the slave resisted the master, there was no remedy 
by which the master could exercise his control ; that the colonial legis- 
lation which afforded the master means of controlling his property had 
no authority in England, and that England by her laws had provided 
no substitute for that authority. That was what Lord Mansfield de- 
cided. I say this was judicial legislation. I say it subverted the entire 
previous jurisprudence of Great Britain. I have just adverted to the 
authorities for that position. Lord Mansfield felt it. The case was 
argued before him over and over again, and he begged the parties to 
compromise. They said they would not. "Why," said he, a l have 
known six of these cases already, and in five out of the six there was a 
compromise ; you had better compromise this matter." But the parties 
said no, they would stand on the law; and then, after holding the case 
up three terms, Lord Mansfield mustered up courage to say what I 
have just asserted to be his decision: that there was no law in England 
affording the master control over his slave ; and that therefore the 
master's putting him on board of a vessel in irons, being unsupported 
by authority derived from English law, and the colonial law not being 
in force in England, he would discharge the slave from custody on 
haberjbs corpus, and leave the master to his remedy as best he could 
find one. I 

Mr. FESSENDEN. Decided so unwillingly. 

Mr. BENJAMIN. The gentleman is right— very unwillingly. He 
was driven to the decision by the paramount power of that fanaticism 
which is now perverting the principles and obscuring the judgment of 
the people of the North, and of whose effects, I must say, there is no 
more striking example to be found than is exhibited by its influence on 
the clear and logical intellect of my friend from Maine. 

Mr. President, I make these charges in relation to that judgment, 
because in them I am supported by an intellect greater than Mans- 
field's — by a judge of resplendent genius and consummate learning — 
one who, in all questions of international law, on all subjects not 
dependent upon the peculiar municipal common law of England, has 
won for himself the proudest name in the annals of her jurisprudence — 
the gentleman knows well that I refer to Lord Stowell. As late as 



182 i, twenty years after Great Britain Lad abolished the slave trade 
six years before she was brought to the point of confiscating the 
property of her colonies which she had forced them to buy, a case was 
Drought before that celebrated judge— a case known to all lawyers by 
the name of the slave Grace. It was pretended in the argument that 
the slave Grace was tree, because she had been carried to England ; and 
it was said, under the authority of Lord Mansfield's decision in the 
bommersett case, that, having once breathed English air, she was 
tree—that the atmosphere of that favored kingdom was too pure to be 
breathed by a slave. Lord Stowell, in answering that legal argument, 
said that, after painful and laborious research into historical records, he 
did not find anything touching the peculiar fitness of the English at- 
mosphere for respiration during the ten centuries that slaves had lived 
in England. 

I desire to call the attention of the Senate to some passages in that 
celebrated decision, in answer to another proposition which the Senators 
who are opposing this bill assume in nearly all their arguments, and 
that is, that slavery is the creatflre of positive legislation, and cannot 
be established by customary law or usage. That point was raised in 
this case, and Lord Stowell thus disposed of it! 

"Having adverted to most of the objections that arl.se to the revival of slavery in the 
Colo ies, J have first to observe that it returns upon the slave by the same title by which it 
grew up originally. It never was in Antigua the creature of law, but of that custom which 
operates with the force of law; and when it is cried out that mains usus obolewhu est it is first 
to be proved that, even in the consideration of England, the use of slavery is considered as a 
malut usus in the colonies. Is that a malut usus which the court of the King's privy council 
and the courts of chancery are every day carrying into full effect in all considerations of prop- 
} 'r m l , ° nC hj appeaL and in the othcr bv original causes— and all this enjoined and 
confirmed by statutes? Still less is it to be considered as a malut usus in the colonies them- 
selves where it has been incorporated into full life and establishment— where it is the system 
01 the Mate and of every individual in it ; and fifty years have passed without any authorized 
condemnation ot it in England as a malus usus in the colonies/' 

This, sir, was fifty years after Lord Mansfield's speech in the Som- 
mersett case. 

"The fact is. that in England, where villenage of both sorts went into total decay, we had 
communication with no other country; and. therefore, it is triumphantly declared, as 
I have before observed, 'once a freeman ever a freeman.' there being no other country with 
which we had immediate connection, which at the time of suppressing that system we had 
any occasion to trouble ourselves about. But slavery was a very favored introduction into 
the colonies; it was deemed a great source of the mercantile interest of the country, and was. 
on that account, largely considered by the mother country as a great source of its wealth and 
strength. Treaties were made on that account, and the colonies compelled to submit to those 
treaties by the authority of this country. This system continued entire. Instead of being 
condemned as malut usus, it was regarded as a most eminent source of its riches and power 
It was at a late period of the last century that it was condemned in England as an institution 
not fit to exist here, for reasons peculiar to our own condition; but it has been continued in 
our colonies, favored and supported by our own courts, which have liberally imparted to it 
their protection and encouragement. To such a system, whilst it is supported, I rather feel it 
to be too strong to apply the maxim, malus usus abolcndus est. The time may come when this 
institution may fall in the colonies, as other institutions have done in othcr flourishing coun- 
tries; hut I am of opinion it can only be effected at the joint expense of both countries, for it 
is in a peculiar manner the crime of this country; and 1 rather feel it to be an objection to this 
species of emancipation, that it is intended to be a very cheap measure here by "throwing the 
whole expense upon the country."— 2 Haggard's Reports, 126 et seq. 

_ After that decision had been rendered, Lord Stowell, who was at that 
time in correspondence with Judge Story, sent him a copy of it, and 



10 

wrote to him upon the subject of his judgment. No man will doubt the 
anti-slavery feelings and proclivities of Judge Story. He was asked to 
take the decision into consideration and give his opinion about it. Here 
are extracts from his answer: 

"I have read, with great attention, your jugdrnent in the slave case. Upon the fullest con- 
sideration which I have been able to give the subject, I entirely concur in your views. If I 
had been called upon to pronounce a judgment in a like case, I should have certainly arrived 
at the same result.*' 

That was the opinion of Judge Story in 1827; but, sir, whilst con- 
tending, as I here contend, as a proposition based in history, main- 
tained by legislation, supported by judicial authority of the greatest 
weight, that slavery, as an institution, was protected by the common 
law of these colonies at the date of the Declaration of Independence, 
I go further, though not necessary to my argument, and declare that 
it was the common law of the whole continent of North and South 
America alike. Why, Mr. President, the European continental powers, 
which joined and co-operated with Great Britain in the discovery and 
establishment of colonies on this continent, all followed the same views 
of policy. France, Spain, Portugal, and England, occupied the whole 
continent, North and South. The legislation of all of them was the 
same. Louis XIII, by royal edict, established slavery in all his colo- 
nies in America. Everybody knows that it was through the interfer- 
ence of Las Casas that the Spanish Crown inaugurated the slave trade 
with a view of substituting the servile labor of the African for that of 
the Indians, who had been reduced to slavery by their Spanish con- 
querors. As regards Portugal, she inaugurated the trade; she origi- 
nally supplied all the colonies; and the Empire of Brazil to-day, with 
its servile labor, is the legitimate fruit of the colonial policy of the 
Portuguese Government in the sixteenth century. She began her trade 
in 1508, and some authors say even before the colonization of America 
in the fifteenth century. 

I say that slavery was thus the common recognised institution of the 
New World. I do not thereby mean to admit for a moment that it was 
not the common law of the Old World when this nation was formed. 
Have we all forgotten that white slavery existed in England until a 
comparatively very recent period? It did not finally disappear until 
the reign of James II. What was that system of villenage, of which 
all the old law-writers speak? They were all slaves. These villeins 
were divided into two classes — villeins-regardant and villeins in gross — 
both slaves. The only difference between them was, that the villeins- 
regardant were attached to the soil; they could not be sold away from 
the glebe; they followed the conveyance of the estate into the hands of 
the new lord; but the villeins in gross were mere chattels, sold from 
hand to hand, just as negroes are sold at the present hour. If any gen- 
tleman is curious to see something on this subject, he will find a concise 
account of it in the first volume of the celebrated treatise of Mr. Spence, 
on the equity jurisdiction of the courts of chancery. That volume con- 
tains a very concise and admirable history of the English law. He will 
find there some statements in relation to the law of villenage in En- 



11 



gland. But, sir, a true picture, a fair picture of the state of the vil- 
leins of England, is nowhere better given than in the celebrated argu- 
ment of Hargrave, the great lawyer who was the counsel for the slave 
in the Sommersett case. One passage will give us his description of 
what the villein was under the common law of England: 

"The condition of a villein had most of the incidents which I have before described in giv- 
ing the idea of slavery in general. His service was uncertain and indeterminate, such as°his 
lord thought fit to require; or, as some of our ancient writers express it. he knew not in the 
evening what he was to do in the morning; he was bound to do whatever he was commanded 
He was liable to beating, imprisonment, and every other chastisement his lord might prescribe 
except killing and maiming. He was incapable of acquiring property for his own benefit' 
me rule being 'quicqmd acqmntur servo, acquiritur domino.' He was himself the subject of 
property; as such, saleable and transmissible. If he was a villein regardant, he passed with 
the manor or and to which he was annexed, but might be severed at the pleasure of his lord 
If he was a villein in gross, he was a hereditament or a chattel real, according to his lord's 
interest: being descendible to the heir where the lord was absolute owner, and transmissible 
to the executor where the lord had only a term of years in him. Lastly, the slavery extended 
to the issue, if both parents were villeins, or if the father was a villein: our law derivine the 
condition oi the child from that of the father, contrary to the Roman law. in which the rule 
was partus ttqmUir ventre*.' The origin of villenage'is principally to be derived from the 
wars between our British, Saxon, Danish and Norman ancestors, whilst they were contending 
for the possession of this country. Judge Fitzberbert; in his reading on the fourth of Edw 
i, stat. 1 entitled extent* twiner ti,' supposes villenage to have commenced at the Conquest by 
the distribution then made of the forfeited lands, and of the vanquished inhabitants resident 
upon them. But there were many bondmen in England before the Conquest, as appears by 
the Anglo-baxo.i laws regulating them; and therefore it would be nearer the truth to attribute 
the origin of villeins as well to the preceding wars and revolutions in this country as to the 
effect? ol the Conquest."-.20 Howell's State. Trials, pp. 3C-7. 

I say, then, sir, that white slavery was protected by the common law 
of England down to James II ; and if any man is peculiarly curious 
to learn the process by which it gradually disappeared, and has any 
taste for antiquarian lore, if he will look to the appendix to the 
twentieth volume of Howell's State Trials, he will find a commission 
S BUed hy ^ Ueeu Elizabeth t0 Cecil, Lord Burleigh, and Sir William 
Mildmay, giving them authority to go into her counties of Gloucester, 
Cornwall, Devon, and Somerset, and there to manumit her slaves, by 
getting from them a reasonable price for their liberty. That is the way 
slavery was abolished in England. It was abolished by the gradual 
emancipation of the slaves, resulting from the sale, by the lord to the 
slave himself, of his right over him. I will read a 'passage of this 
commission: 

1 'Euzaueth by the grace of God, Ac. To our right trustie and well-beloved counsellor, sir 
W. Cecill of the Garter Kmghte, lord Burghley and Sighe Treasorer of England, and to our 
trustie and right well-beloved counsellor, sir Walter Mildmav. Knight, ebauncellei' and under 
treasorer ot our exchequer, gree tinge. 

"Whereas, divers and sundrie of our poore faithfull and loyal subjectes, being borne bonde 
in b ode and regardaunt to divers and sundrie our manors and possessions within our realm of 
■ngland, have made humble suy te unto us to be manumvsed. enfraunchised, and made free, with 
theire children andsequells, by reason whereof they, theire children and sequclls, may become 
more ante and fitte members for the service of us and of our common wealthe 

We therefore, having teuder consideration of their said sute. and well considering the same 
to be acceptable to Almightie God" 

Now, we all suppose she is going to give them their freedom. Not 
at all. She is willing to sell them to themselves at a fair price; and 
so she goes on: 

o^ll^ d W ^ d ° comm 3' t , t and g»ve unto you full power and authoritio by these presents, to accepte, 
admitta and receive to be mammy sed, enfraunchised. and made free, suche and so many of our 



12 

bondmen and bondwomen in blood, with all and every theke children and sequells, theire goodee,. 
landes, tenemcntes, and hereditaments, a3 are now apperteynynge or regardaunte to all or any 
oi our manors, landes, tenementes, possessions, or heredicamente within the said several coun- 
ties ol Cornwall, Devon, Somersett, and Gloucester, as to you by your discretions shall some 
mete and convenient, compounding' icith them for tuche reasonable fines or sommes of money to 
be taken a»rt received to our use for the manumyssion and enfraunchiscment, and for the posses- 
sions, and enjoying of all and singular theire landes, tenementes, hereditaments, goodes and 
ehattells whatsoever, as you and they can aggree for the same after your wisdomes and discre- 
tions." 

Hero, then, was slavery in its widest and broadest acceptation, in 
Great Britain, in the time of Elizabeth, and it never finally disappeared 
from the kingdom until the reign of James II. 

How was it in France ? In France they had a system of white slaves 
of the ^anie kind. There they called them genu de main morte — mort- 
main people, because they belonged to the estates; and they, in 1779, 
were enfranchised by royal edict, commencing in these words: 

; \V( have been greatly affected by the consideration that a large number of our subjects, 
still attached as slaves to the prlebe. are regarded as formingpart of it as it were; that deprived 
of the liberty of their persons, and of the rights of property, they themselves are considered as 
the property of their lords; that they have not the consolation of bequeathing their goods, and 
that, except in a few cases rigorously circumscribed, they cannot even transmit to their own 
children the fruits of their own labor." 

Thus fell the last remnant of white slavery in France in 1779, after 
our independence. 

As regards, Spain, let any one who is in the habit of reading the 
literature of that country for the eighteenth century tell me if he re- 
members a solitary tale or romance of her authors in which some Moorish 
or negro slave is not introduced as the familiar inmate of the household. 
The remainder of the European continent is still governed with bene- 
ficent sway by the civil law; and all know that that law protects, in 
every aspect, the relation between master and slave. 

Thus, Mr. President, I say, that even if we admit for the moment 
that by the common law of the nations which colonized this continent, 
the institution of slavery, at the time of our independence, was dying 
away by manumissions, either gratuitous or for a price granted by those 
who held the people as slaves; yet so far as the continent of America 
was concerned, North and South, there did not breathe a being who did 
not know thrt a negro, under the common law of the continent, was 
merchandise, was property, was a slave; and that he could only extri- 
cate himself from that statue, stamped upon him by the common law 
of the country, by positive proof of manumission. No man was bound 
to show title to his negro slave. The negro was bound to show manu- 
mission under which he had acquired his freedom, by the common law 
of every colony. Why, sir, can any man doubt, is there a gentleman 
here, even the Senator from Maine, who doubts that if, after the Revo- 
lution, the different States of this Union had not passed laws upon the 
subject to abolish slavery, to subvert this common law of the continent, 
«very one of these States would be slave States yet? How came they 
free States? Did not they have this institution of slavery imprinted 
upon them by the power of the mother country? How did they got rid 
of it? All, all must admit that they had to pass positive acts of legis- 



1 ° 

lation to accomplish this purpose. Without that legislation they would 
still be slave States . What, then, becomes of the pretext that'slavery 
only exists in those States where it was established by positive legisla- 
tion, that it has no inherent vitality out of those States, and that slaves 
are not considered as property by the Constitution of the United States? 
When the delegates of the several colonies, which had thus asserted 
their independence of the British Crown, met in convention, the de- 
cision of Lord Mansfield in the Sommersett case was recent — known to 
all. At the same time, a number of the northern colonies had taken 
incipient steps for the emancipation of their slaves. Here permit me 
to say, sir, that, with a prudent regard to what the Senator from Maine 
[Mr. Hamlin] yesterday called the "sensitive pocket-nerve," they all 
made these provisions prospective. Slavery was to be abolished after a 
certain future time — -just enough time to give their citizens convenient 
opportunity for selling the slaves to southern planters, putting the 
money in their pockets, and then sending to us here, on this floor, re- 
presentatives who flaunt in robes of sanctimonious holiness: who make 
parade of a cheap philanthropy, exercised at OUT expense; and who say 
to all men, "Look ye now, how holy, how pure we are; you are polluted 
by the touch of slavery; we are free from it." 

I say that was the position of the delegates when they met in con- 
vention; and it was necessary to make provision in relation to slaves. 
In the northern States slavery was about to be abolished. If Lord 
Mansfield's decision in the Sommersett case was to be followed as the 
rule, it was obvious that southern slaves were exposed to being plun- 
dered, robbed, carried away from their masters. ' On the other hand, 
by a compromise between the North and the South, slaves had entered 
into the representative basis of the country. What w T as to be done ? 
Two clauses were put in the Constitution, one to guaranty to the 
South its property — it provided for the return to the southern owner of 
the slave that was recognised as his property; another clause for the 
North, to prevent a disturbance of the representative basis i>y importa- 
tion of slaves. The North said. to the South, "You shall not increase 
your laboring population by importation after twenty years, because 
we of the North have an interest in that quest .ion; we have agreed they 
shall be counted in the representative basis, and we want protection as 
well as you." That is all the Constitution says on this subject. It 
guaranties to the South the sanctity of its peculiar property; it protects 
the North against any abnormal augmentation of the number of slaves 
in the South which might give them an undue preponderance in the 
representation of the different States of the Union. 

Noav, sir, because the Supreme Court of the United States says — what 
is patent to every man who reads the Constitution of the United States — 
that it does guaranty property in slaves, it has been attacked with 
vituperation here, on this floor, by Senators on all sides. Some have 
abstained from any indecent, insulting remarks in relation to the court. 
Some have confined themselves to calm and legitimate argument. To 
them I am about to reply. To the others I shall have something to 
say a little later. What says the Senator from Maine? [Mr. Fbssenden.J 



14 



He says: 



"Had the result of that election been otherwise, and had not the [Democratic] partj tri- 
umphed on the dogma which they had thus introduced, we should never have heard of a 
doctrine so utterly at variance with all truth; so utterly destitute of all legal logic; so founded 
on error, and unsupported by anything like argument, as is the opinion of the Supreme 
Court." 

He says, further: 

"I should like, if I had time, to attempt to demonstrate the fallacy of that opinion. I hare 
examined the view of the Supreme Court of the United States on the question of the power of 
the Constitution to carry slavery into free territory belonging to the United States, and I tell 
you that 1 believe any tolerably respectable lawyer in the United States can show, beyond all 
question, to any fair and unprejudiced mind, that the decision has nothing to stand upon 
except assumption, and bad logic from the assumptions made. The main proposition on which 
that decision is founded: the corner-stone of it, without which it is nothing, without which it 
fails entirely to satisfy the mind of any man, is this: that the Constitution of the United States 
recognises property in slaves, and protects it as such. I deny it. It neither recognises slaves 
as property, nor does it protect slaves as property." 

The Senator here, you see, says that the whole decision is hased on 
that assumption, which he pronounces false. He says that the Consti- 
tution does not recognise slaves as property, nor protect them as prop- 
erty, and his reasoning, a little further on, is somewhat curious. He 
says: 

"On what do they found the assertion that the Constitution recognises slaves as property? 
On the provision of the Constitution by which Congress is prohibited from passing a law to 
prevent the African slave trade for twenty year?: and therefore they say the Constitution 
recognises slaves us property." 

I should think that was a pretty fair recognition of it. On this point 
the gentleman declares: 

"Will not anybody see that this constitutional provision, if it works one way, must work 
the other? If. by allowing the slave trade for twenty years, we recognise slaves as property, 
when we say that at the end of twenty years we will cease to allow it. or may cease to do so, 
is not that denying them to be property after that period elapses?" 

That is the argument. Nothing hut my respect for the logical in- 
tellect of the Senator from Maine could make me treat this argument 
as serious, and nothing but having heard it myself would make me 
believe that he ever uttered it. What, sir! The Constitution of our 
country says to the South, "you shall count as the basis of your repre- 
sentation five slaves as being three white men; you shall be protected 
in the natural increase of your slaves: nay, more, as a matter of com- 
promise you may increase their number if you choose, for twenty years, 
by importation; when these twenty years are out, you shall stop." 
The Supreme Court of the United States says, "well; is not this a re- 
cognition of slavery, of property in slaves?" "Oh, no," says the gen- 
tleman, "the rule must work both ways: there is a converse to the 
proposition. ' ' Now, sir, to an ordinary, uninstructed intellect, it would 
seem that the converse of the proposition was simply that at the end of 
twenty years you should not any longer increase your numbers by im- 
portation; but the gentleman says the converse of the proposition is 
that at the end of the twenty years, after you have, under the guarantee 
of the Constitution, been adding by importation to the previous number 
of your slaves, then all those that you had before, and all those that, 
under that Constitution, you have imported, cease to be recognised as 






16 



property by the Constitution, and on this proposition he assails the 
Supreme Court of the United States— a proposition which he says will 

occur to anybody! 

Mr FESSENDEN. Will the Senator allow mer 1 

Mr BENJAMIN. I should he very glad to enter into this question 
with the Senator now, but I fear it is so late that I shall not be able to 

get through to-day. 

Mr FESSENDEN. I suppose it is of no consequence. 

Mr. BENJAMIN. What says the Senator from Vermont, [Mr. Coi> 
lamer,] who also went into this examination somewhat extensively? I 
read from his printed speech: 

"I do not sav that slaves are never property. I do not say that they are or are not. Within 
the limits of a State which declares them to be property, they are property, because they are 
within the jurisdiction of that government which makes the declaration; but 1 should wish to 
weak of t in the light of a member of the United States Senate, and in the language of the 
Untted States Constitution If this be propertv in the States, what is the nature and extent of 
5? -m shn ^thktTle SuTeme Court have often decided, and everybody has understood, tha 
Iverv is a loca instituLn, existing by force of BOM law; and of course that law can give it 
nVpoJible character beyond the limits of that State. I sha 1, no doubt, find the idea better «- 
p?eS in the opinion of Judge Nelson, in this same Dred Scott decision. I prefer to read his 

ftflSSry StottSSS* possesses an exclusive sovereignty and jurisdiction within her own 
territory 'and her laws affect and bind all property and persons residing within it. It may 
Sate the manner and circumstance, under which property is held and the condition, capacity, 
S state of aU persons therein; and also the remedy and the modes of administering justice. 
And Hfe « ua Uy to ue that no State or nation can affect or bind property out of its territory, or 
r^sos not residing within it. No State, therefore, can enact laws to operate beyond its own 
Enions- and if g it attempts to do so, may be lawfully refused obedience Such laws can 
haTe ■ n" J authority extra-territorinlly. This is the necessary result of the independence ot di* 

^^H^e^XtawrindtStt exists the law of slavery in the different States By virtue of 
this very principle it cannot extend one inch beyond its own territorial hunts. A State 
cSnot ?ec,Se Sie relation of master and slave, of owner and property, the manner and title 
of deienf or anything else, one inch beyond its territory. Then you cannot by virtue of the 
towrfriaverv. if it makes slaves property in a State, if you please, ™7*^^&™£« 
the State It ends whenever you pass from that State. You may pass into another State that 
to a like law and if you do. you hold it by virtue of that law; but the moment you pass 
Kond the Hmits of thislaveholding States, all title to the property called property in slaves 
E ends Under such a law slay* cannot be carried as property into the Territories, or any- 
where else beyond the States authorizing it. It is not property anywhere else. If the Gonstt- 
tatton of the United States gives any other and further character than this to slave property, 
let u inuw tedee it fairly, and end" all strife about it. If it doe* not, I ask in a 1 candor, 
thlrm^n on the other side'shall say so, and let this point be settled. What is the point we are 
to nqu re "n to ? It is this: does the 'Constitution of the United States make slaves property 
bVond the jurisdiction of the States authorising slavery? If it only acknowledges them as 
propertv within that jurisdiction, it has not extended the property one inch beyond the State 
lS 1 utTf as the Supreme Court seems to say, it does recognise and protec them as property 
further than State limits, and more than the State laws do, then, indeed, it becomes like other 
Property The Supreme Court rest this claim upon this clause of the Constitute: 'No person 
heXto service or labor in one State under the laws thereof, shall, in consequence of any law 
or regulation therein, be discharged from such service or labor, but shall be delivered up on 
Sof the party to wh om such service or labor may be due.' Now the question is does .that 
guamn y t? P Does that make it the same as other property? The very tact that this clause 
makes provision on the subject of persons bound to service, shows that the framers of the Con- 
Stion did not regard it as other property. Tt was a thing that needed some provision; other 
propertv eld ot. %e insertion of such a provision shows that it was not regarded as other 
DropW If a man's horse stray from Delaware into Pennsylvania he can go and get it Is 
there any provision in the Constitution for it? No. How came ttus to be fhere, if a slave is 
property? If it is the same as other property, why have any provision about it f 

It will undoubtedly have struck any person, in hearing this passage 
read from the speech of the Senator from Vermont, whom I regret not 



16 

o see in his seat to-day, that the whole argument, ingeniously as it is 
put, rests upon this fallacy — if I may say so with due respect to him — 
that a man cannot have title in property wherever the law does not 
give him a remedy or process for the assertion of his title; or, in other 
words, his whole argument rests upon the old confusion of ideas which 
considers a man's right and his remedy to be one and the same thing. 
I have already shown to you, by the passages I have cited from the 
opinions of Lord Stowell and of Judge Story, how they regard this 
subject. They say that the slave who goes to England, or goes to 
Massachusetts, from a slave State, is still a slave — that he is still his 
master's property; but that his master has lost control over him, not 
by reason of the cessation of his property, but because those States 
grant no remedy to the master by which he can exercise his control. 

_ There are numerous illustrations upon this point — illustrations fur- 
nished by the copy-right laws, illustrations furnished by patent laws. 
Let us take a case — one that appeals to us all. There lives now a man 
in England who from time to time sings to the enchanted ear of the 
civilized world strains of such melody that the charmed senses seem to 
abandon the grosser regions of earth, and to rise to purer and serener 
regions above. God has created that man a poet. His inspiration is 
his; his songs are his by right divine; they are his projoerty, so recog- 
nised by human law. Yet here in these United States men steal Ten- 
nyson's works and sell his property for their profit; and this because, 
in spite of the violated conscience of the nation, we refuse to give him 
protection for his property. 

Examine your Constitution; are slaves the only species of property 
there recognised as requiring peculiar protection? Sir, the inventive 
genius of our brethren of the North is a source of vast wealth to them 
and vast benefit to the nation. I saw a short time ago in one of the 
New York journals, that the estimated value of a few of the patents 
now before us in this Capitol for renewal was $40,000,000. I cannot 
believe that the entire capital invested in inventions of this character 
in the United States can fall short of one hundred and fifty or two 
hundred million dollars. On what protection does this vast property 
rest? Just upon. that ,same constitutional protection which gives a 
remedy to the slave owner when his property is also found outside of 
the limits of the State in which he lives. 

Without this protection, what would be the condition of the north- 
ern inventor? Why, sir, the Vermont inventor protected by his own 
law would come to Massachusetts, and there say to the pirate who had 
stolen his property, '''render me up my property or pay me value for 
its use." The Senator from Vermont would receive for answer, if he 
were the counsel of this A^ermont inventor, "Sir, if you want protec- 
tion for your property go to your own State; property is governed by 
the laws of the State within whose jurisdiction it is found; you have 
no property in your invention outside of the limits of your State; you 
cannot go an inch beyond it." Would not this be so? Does not every 
man see at once that the right of the inventor to his discovery, that the 
right of the poet to his inspiration, depends upon those principles of 



17 

eternal justice which God has implanted in the heart of man, and that 
wherever he cannot exercise them it is hecause man, faithless to the 
trust that he has received from God, denies them the protection to 
which they are entitled? 

Sir, follow out the illustration which the Senator from Vermont him- 
self has given; take his very case of the Delaware owner of a horse riding 
him across the line into Pennsylvania. The Senator says : "Now, you 
see thatslaves are not property like other property; if slaves were property 
like other property, why have you this special clause in your Constitu- 
tion to protect a slave? You have no clause to protect the horse, he- 
cause horses are recognised as property everywhere." Mr. President, 
the same fallacy lurks at the bottom of this argument, as of all the 
rest. Let Pennsylvania exercise her undoubted jurisdiction over per- 
sons and things within her own boundary; let her do as she has a per- 
fect right to do — declare that hereafter, 'within the State of Pennsyl- 
vania, there shall be no property in horses, and that no man shall 
maintain a suit in her courts for the recovery of property in a horse ; 
and where will your horse-owner be then ? \ Just where the English 
poet is now; just wl^re the slaveholder and the inventor would be it^ 
the Constitution, foreseeing a difference of opinion in relation to rights^ 
in these subject-matters, had not provided the remedy in relation to 
euch property as might easily be plundered. Slaves, if you please, are 
not property like other property in this : that you can easily rob us of 
them; but as to the right in them, that man has to overthrow the 
whole history of the world, he has to overthrow every treatise on ju- 
risprudence, he has to ignore the common sentiment of mankind, he 
has to repudiate the authority of all that is considered sacred with 
man, erehe can reach the conclusion that the person who owns a slave, 
in a country where slavery has been established for ages, has no other 
property in that slave than the mere title which is given by the statute 
law of the land where it is found. 

^ I never heard this question disputed before; I never heard a sugges- 
tion that slave* were not protected as property by the Constitution of 
the United States till I heard it from the Senator from Maine here the 
other day. In the sixteenth volume of Peters's Reports there is the re- 
port of a case which occurred between the States of Maryland and Penn- 
sylvania. It was elaborately argued. The Commonwealth of Penn- 
sylvania sent her attorney general into the room below to affirm her 
right to the legislation which she had passed. Although the suit was 
in the name of an individual, really it was the rights of Maryland 
that were concerned, and it was the State of Maryland that was Inter- 
ested in the decision. The case is known by the title in the law-books 
of Prigg versvs the State of Pennsylvania. Every judge on the bench 
gave his decision in that case. Every judge on the bench con- 
curred in the decision. Judge Story delivered the opinion of the 
court, the other judges delivering their individual opinions, where 
they did not precisely agree with the general language of the court. 
Amongst those judges was judge McLean, one of the dissentient judges 
in the Dred Scott case. Let us hear what he says about slaves being 



18 

property under the Constitution. I shall read a short passage, a para- 
graph or two only. I take this out of his statement of his opinion at 
page 661, of 16th Peters. He quotes the clause of the Constitution 
that protects us in our rights to fugitive slaves, and he says: 

"It was designed to protect the rights of the master, and against whom? Not against the 
State, nor the people of the State in which he resides; but against the people and the legisla- 
tive action of other States, where the fugitive from labor might be found. Under the confede- 
ration, the master has no legal means of enforcing his ricihts in a State opposed to slavery. 
A disregard of rights thus asserted, was deeply felt in the South. It produced great excite- 
ment, and would have led to results destructive of the Union. To avoid this, the constitu- 
tional guarantee was essential.'' 

Now, what is this guarantee? He tells us, at page 671 of the same 
volume : 

"I cannot perceive how any one* can doubt that the remedy given in the Constitution, if, 
indeed, it give any remedy without legislation, was designed to be a peaceful one ; a remedy 
sanctioned by judicial authority; a remedy guarded by the forms of law. But the inquiry in 
reiterated, is not the master entitled to his proj>erty? I answer that he is. His right is guar- 
antied by the. C'onstituticn; and the most summary mean3forits enforcement is found jn the act 
of Congress. And neither the State nor its citizens can obstruct the prosecution of this 
right." 

That was Judge McLean's language. When I find language like 
W this, even from the minority of the court in the Dred Scott case, when 
I find the entire court, man for man, concurring that the constitutional 
rights of the South are guarantied in slaves as property by this clause 
in the Constitution, I must express my intense surprise at hearing the 
Senator from Maine declare that the Dred Scott decision was not to be 
supported, because it rested for a corner-stone on the assumption that 
slaves _ were recognised by the Constitution, as property, which as- 
sumption he denied.. 

But, Mr. President, all these gentlemen who thus fail in the slightest 
degree to impugn the opinion of the court by argument, attempt to 
shake its authority by an assertion entirely destitute of the slightest 
foundation. Every Senator who has spoken on the subject of this de- 
cision has declared that the court said it was without jurisdiction to 
determine it, and then determined it. I say that all the judges declared 
that they had jurisdiction of the merits, and determined that point 
before they decided the merits; and I am prepared to prove it. There 
was not a judge on the bench who did not declare that he had juris- 
diction of the merits. There were some of the judges who declared 
that they had jurisdiction of no other question, and Judge McLean was 
one of them. He said the question of jurisdiction was not before them 
at all, and so did Judge Catron; and both those judges said that the 
court had nothing before them but the merits. Every judge said that 
he had the merits before him. I will prove it. 

"When this decision was first published; when, as 1 am sorry to say, 
two of the judges of that court so far forgot the proprieties of their 
judicial station as to send forth a minority opinion to forestall the pub- 
lic judgment, and to produce among the people of the country the im- 
pression that the integrity of their judiciary was no longer to be relied 
upon, and thus to subvert one of the foundations of our Government; 
when those opinions first went abroad, they were seized upon by the 



19 

Republican presses through the land, and it was said everywhere, "this 
court is usurping power; it has no such power as that which it assumes; 
it first says it has no jurisdiction, and then, after declaring itself to be 
without power over the subject-matter, presumes to determine it." 
Every Senator on this side of the Chamber, who has spoken, has re- 
peated this. I want to nail the assertion to the counter; the coin is 
false. 

Mr. FESSENDEN. The Senator will allow me to make a suggestion 
as to the statement of the court. 

Mr. BENJAMIN. Undoubtedly. 

Mr. FESSENDEN. I understand the Senator to assert that two 
judges sent forth their opinions. Did they do anything more than put 
their opinions on file in the clerk's office, where they were copied? 

Mr. BENJAMIN. I think they did; but I am not going to enter 
into that now. 

Mr. FESSENDEN. I understand it is not the fact, They simply 
put their opinions on file in the clerk's office, as was the rule of the 
court; the others kept theirs back. 

Mr. BENJAMIN. The gentleman is mistaken about that. 

Mr. FESSENDEN. I am so instructed. 

Mr. BENJAMIN. The gentleman is mistaken. The copies of those 
opinions were not furnished by the clerk of the court, 

Mr. FESSENDEN. They were not sent forth by the judges, that I 
am aware of. 

Mr. BENJAMIN. I do not mean to say that the judges themselves 
took their opinions and carried them to the printing offices; but they 
furnished them for publication. It is idle to deny it. Everybody 
knows it. 

Now, sir, I come back to the point from which I started. I say that 
every judge of the court, in his opinion, declared that he had juris- 
diction — jurisdiction over the merits of this case. First, let us take 
the Chief Justice, who was the organ of the court, I cannot read all 
the reasoning; I should detain the Senate too long if I were to do so, 
and I see too many visible signs of impatieuce about me to desire to 
detain them any longer. The Chief Justice said this: 

"But, before we proceed to examine this part of the case, it may be proper to notice an 
objection taken to the judicial authority of this court to decide it ; and it has been said, that 
aa this court bite decided against the jurisdiction of the circuit court [not its own juri3dic- 
tion] on the plea in abatement, it has no right to examine any question presented by the ex- 
ception ; and that anything it may say upon that part of the case will be extra-judicial, and 
mere obiter dicta. 

u This is a manifest mistake ; there can be no doubt as to the jurisdiction of this court to 
revise the judgment of a circuit court, and to reverse it for any error apparent on the record, 
whether it be the error of giving judgment in a case over which it had no jurisdiction, or any 
other material error; and this, too. whether there is a plea in abatement or not." — 19 How- 
ard, 421. 

That is the language of the Chief Justice, the organ of the court, 
who delivered the opinion of the majority. Judge Wayne says the 
same thing, at page 456. Judge Nelson says, in giving his opinion: 

" In the view we have taken of the case, it will not be necessary to pass upon this question, 
[of jurisdiction,] and we shall therefore proceed at one* to an examination of the case upon 
ite merits ." — Joxd. p. 458. 



20 

Judge Grier says : 

'•'The record shows a prima facie care of jurisdiction, requiring the court to decide all ih« 
questions properly arising in it; and as the decision of the pleas in bar shows that the plain- 
tiff' is a slave, and therefore not entitled to sue in a court of the United States, the form of 
ihe judgment is of little importance." — Ibid. p. 469. 

Mr, Justice Daniel (p. 482) says that the questions arising on the 
pleas in bar might be passed by after determining the plea in abate- 
ment; but he does give his opinion on the merits, although he thought 
it would be possible to decide the case without a decision on its merits. 

Mr. Justice Campbell says: 

"My opinion in this case is not affected bj the plea to the jurisdiction, and I shall not dis- 
cuss the questions it suggests. The claim of the plaintiff to freedom depends upon the effect 
to be given to his absence from Missouri, in company with his master, in Illinois and Minne- 
sota, and this effect is to be ascertained by a reference to the laws of Missouri." — Ibid. p. 493. 

He determines nothing but the merits. 

Mr. Justice Catron (p. 518) says that the judgment of the circuit 
court upon the plea in abatement — that is, the plea to the jurisdic- 
tion — was not, in his opinion, open to examination in the Supreme 
Court, and that they had nothing before them but the merits. 

Mr. Justice McLean says: 

"The plea to the jurisdiction is not before us, on this writ of error. A demurrer to tho 
plea was sustained, which ruled the plea bad, and the defendant, on leave, pleaded over. 

"The decision on the demurrer was in favor of the plaintiff; and as the plaintiff prosecute* 
this writ of error, he does not complain of the decision on the demurrer. The defendant 
might hare complained of this decision, as against him, and have prosecuted a writ of error 
to reverse it. But as the case under the instruction of the court to the jury was decided in 
his favor, of course he had no ground of complaint." — Ibid. p. 530. 

Judge McLean then says that the court had no question of jurisdic- 
tion before it at all, nothing but the merits. 

Mr. Justice Curtis says the same thing: 

"That as the plea to the jurisdiction in this case shows no facts, except that the plaintiff 
was of African descent, and his ancestors were sold as slaves, and as these facts are not incon- 
sistent with his citizenship of the United States, and his residence in the State of Missouri, 
the plea to the jurisdiction was bad, and the judgment of the circuit court overruling it was 
correct." — Ibid. p. 588. 

And, therefore, he goes on to determine the merits. Now, shall I 
detain the Senate by reading passages from the speeches which I hold 
in my hand, and in which every Senator in succession, who has spoken 
of this decision, has spread before the country the bold, plain statement 
that the Supreme Court first decided that it had no jurisdiction, and 
then went on to determine the merits? 

Mr. FESSENDEN. I must beg the Senator to give me leave to ex- 
plain, because I do not know that I shall have an opportunity to answer 
him. 

Mr. BENJAMIN. I will yield for a few minutes, of course. 

Mr. FESSENDEN. I merely wish to explain on this specific point. 
I do not know what particular language I used myself in the speech I 
made on this subject. I remember very well the idea which I meant 
to convey; and I presume that idea is conveyed in sufficiently distinct 
language. It is this: I did not speak of the individual judges, but I 



21 

said that, in the opinion of the court, which, was delivered by Judge 
Taney, and to which only I alluded, the point decided in the first place, 
was. that the court below, and consequently the court above, had no 
jurisdiction of the case, for the reason that the party plaintiff was not 
qualified to sue; he had no standing in the court. That was the de- 
cision; and the inference I drew (I do not; know whether I used the 
term or not) was, that the court admitted they had no jurisdiction. I 
did not mean to say that they admitted in terms that they had no juris- 
diction beyond that, and over the merits of the case; but that the sub- 
stance of their decision was, that the plaintiff having no standing in 
the court whatever, the case must consequently be dismissed; and that, 
whatever they undertake to say afterwards, was mere assertion. 

I know they go on to give a reason for expressing their opinion, and 
that is, that in all writs of error they may confine themselves to the 
particular error which they find in the record below, or do not find, as 
the case may be; but that, in certain cases, they may look into other 
parts of the record in order to preclude the necessity of revising the 
case afterwards. The Senator, however, is perfectly aware that this 
idea has been answered over and over again by the remark, that the 
case could not possibly come before them again, when the decision was 
that the plaintiff had and could have no standing in court. What my 
particular language was I do not undertake to say. I may have said 
that the court admitted they had no jurisdiction of the case; not that 
they admitted it in terms, but by the original decision they made that 
the. plaintiff had no right in the court below, and consequently could 
have none in the court above. I did not undertake to dispute that the 
Supreme Court of the United States had power to revise the decision of 
the court below, if properly brought there; but I say, when they de- 
cided that the plaintiff had no standing in the court originally, there 
was an end of the whole matter, and the court could not properh', and 
it was contrary to all custom, go into an examination of other questions 
that did not necessarily arise. That is the position I mean to take. I 
did not go into it at length, as perhaps I may hereafter; hut the Sen- 
ator misrepresents me, not intentionally: he misunderstands me if he 
asserts that J said, or meant to be understood as saying, that the court 
had in terms admitted that they had no jurisdiction of any question 
beyond the first. He may read the language of my speech, if he sees 
fit' to do so. 

Mr. BENJAMINS. It is rather late in the day, and I have not time 
to go at any length into this discussion, but I have the Senator's lan- 
guage before me; I have the language of the Senator from New York 
[Mr. Seward,] and of the Senator from Vermont [Mr. Collamek.J 
Every one of those Senators said that the Supreme Court had decided 
that it had no jurisdiction. The language is here; and now what does 
the Senator from Maine answer to that position ? That although the 
Supreme Court decided it had jurisdiction, in his judgment its decision 
was wrong ! 

Mr. EESSENDEN. That is not what I said. 

Mr. BENJAMIN. It cannot be anything else. The Supreme Court 



22 

of the United States was the only tribunal to determine in the last 
resort whether it had jurisdiction or not over the question. It deter- 
mined that it had. The Senator says it began by determining that the 
plaintiff in the court below had no right to come into the court, and by 
reason thereof determined that the circuit court had no jurisdiction, 
and lie puts in himself that consequently the Supreme Court had no 
jurisdiction. It is precisely his "consequently" that Chief Justice 
Taney says is a manifest mistake. Here is what the honorable Senator 
from Maine said: 

"It is said that this question has been carried to the Supreme Court of the United States and 
settled there. Does the honorable Senator from Louisiana" 

The Senator turned to me. We are always having little legal quar- 
rels in this corner between ourselves, particularly on the slavery ques- 
tion. 

"Does the honorable Senator from Louisiana, as a lawyer, undertake to tell me that the 
question has been settled by a judicial decision in that court? Lid that question evw arise 
and present itself to the mind of the court with reference to any necessity of the case? To 
what extent does the honorable Senator, or anybody else who is a lawyer, undertake to say 
that the decision of the court is binding? It is binding so far, and so far alone, as it can issue 
its mandate. Its opinion is of force only upon the question which settles the cause." 

Who is to say what the question is that settles the cause in the 
opinion of the court? Is it five court or the Senator? 

Mr. FESSENDEN. The court had settled it originally. 

Mr. BENJAMIN. The court said, "in our judgment, there are 
two points which settle the cause; one is the jurisdiction, the other the 
merits." The Senator says that by the time they had got through 
stating the first half of their opinion, he has a right to shut their 
mouths and say, "you shall not go on and give any other reason; the 
reason you have given is enough; yon cannot say another word." 
This is a most curious proposition to maintain to anybody that has ever 
heard decrees or opinions rendered in courts of justice. Hear the Senator 
again : 

"Am I bound to recognise opinions that may be advanced by any set of judges, in any 
court, simplv because, after thev have decided a cause, they undertake to give their opinions? 
They may be bad men, thev may be weak men. but their mandate in the cause before them 
uiust be obeyed ; and I will go as far and as readily as any man to obey the mandate of any 
court to which I am bound to render obedience; and I am bound to render obedience to the 
Supreme Court of the United States; bin when they undertake to settle questions not before 
them, 1 tell them those questions are for me as well as for them.'' 

Thus, sir, the honorable Senator declares, point blank, that this ques- 
tion was not before the court. They consider that it was ; the dissent- 
ing judges said it was; everybody there said it was: everybody but the 
Senator from Maine and his worthy colleagues, the Senator from New 
York and the Senator from Vermont. This notion was first started 
by some indecorous expressions in the opinions of the dissenting judges. 
They themselves, declaring that they had jurisdiction oyer the subject- 
matter, suggested that they would not consider the opinion of the other 
judges binding, because, in the opinion of other judges, the court below 
had no jurisdiction; "but," said Judge Taney, " this question is be- 
fore me on its merits : I must decide it ; it is my duty to decide it ; I 
cannot avoid the duty." That is the language, if the gentleman will 
refer to it. 



23 

Now, Mr. President, I come to another point in my argument, which 
I approach with extreme pain, with unfeigned regret. From my earliest 
childhood I have been taught to revere the judges of the highest court 
in the land, as men selected to render justice between litigants, not 
more by reason of their eminent legal acquirements than because of a 
spotless purity of character, an undimmed lustre of reputation, which 
removed them far, far beyond even a doubt of their integrity. The 
long line of eminent judicial worthies, which seemed to have culminated 
in a Marshall, lias been continued in the person of one upon whom the 
highest eulogium that can be pronounced is to say that lie was eminently- 
worthy of being the successor of that illustrious judge. I know not, Mr. 
President, whether you, as I, have had the good fortune to see that 
magistrate in the administration of justice in his own circuit, or in the 
court sitting below us, of which he is the honored chief. I know not, 
sir, whether it has been your good fortune, as it has been mine, to hear 
the expressions of affectionate reverence with which he is spoken of by 
the people amongst whom he lias passed his pure, his simple, and his 
spotless life. 1 know not, sir, whether you have listened, as I have, with 
interest to the expressions of respect and admiration that come from the 
members of his bar in their familiar intercourse with each other — spon- 
taneous tributes) worth a thousand labored eulogies, to his eminent 
sagacity, to his vast legal learning, to the mild and serene dignity of 
his judicial deportment — above all, sir, above all, to the conscientious, 
earnest, almost painful sense of responsibility with which he holds the 
scale of justice in even and impartial hand between the litigants whose 
rights depend upon his judgment. 

Mr. President, he is old, very old. The infirmities of age have bowed 
his venerable form. Earth has no further object of ambition for him ; 
and when he shall sink into his grave, after a long career of high office 
in our country, 1 trust that I do not rudely or improperly invade the 
sanctity of private life in saying that he will leave behind him, in the 
scanty heritage that shall be left for his family, the noblest evidence 
that he died as he had lived, a being honorable to the earth from which 
he sprang, and worthy of the heaven to which he aspired. 

This man, sir, thus beloved, thus revered, thus esteemed, has been 
compared upon this floor to the infamous Jeffreys, by the Senator from 
Maine, [Mr. Hamlin.] This man has been charged by the Senator 
from New York [Mr. Seward] with a corrupt coalition with the Chief 
Magistrate of the Union. He charges, in fact — not always in direct lan- 
guage, but partly by bold assertion and partly by insidious suggestions — 
that the Supreme Executive Magistrate of the land, and the judges of 
our highest court, and the parties to the Dred Scott case, got up a mock 
trial — that they were all in common collusion to cheat the country. He 
represents the venerable Chief Magistrate of our country, whose repu- 
tation hitherto has been beyond reproach — he represents the venerable 
Chief Justice — as enacting a solemn farce, in the face of the American 
people, on the eastern portico of this Capitol ; and he tells us, that on 
the day when that great sea of upturned taces was here presented, all 
looking on the solemn pageant that was passing before them, the Chief 



24 

Justice of the nation was whispering into the ear of the President the 
terms of this nefarious bargain — and that, too, at the very moment 
when the former was administering and the latter taking the oath of 
office, by which the high majesty of Heaven was invoked as witness to 
the purity of his intentions in the administration of the government 
of his country ! 

Mr. President, accursed, thrice accursed, is that fell spirit of party 
which desecrates the noblest sentiments of the human heart; and which, 
in the accomplishment of its unholy purposes, hesitates at no reckless 
violence of assault on all that is held sacred by the wise and good. It 
was difficult, extremely difficult, for us all to sit here and hear what 
was said, and observe the manner in which it was said, and repress the 
utterance of the indignation that boiled up within us. All this is 
charged by the Senator without the proof of a solitary fact, without the 
assertion even of a fact, on which to base the foul charge. Luckily, sir, 
luckily for us, these eminent men are too highly placed in the reverence, 
the estimation, and the regard of the American people, to have their 
bright escutcheon injured by such attacks as these. Mr. President, in 
olden times a viper gnawed a file. 

Although it may not be possible to make direct answers to all these 
insinuations, because no fact is even suggested on which they rest, there 
are some of them in relation to which I have the authentic evidence 
upon my desk in proof of their falsity. 

Was this case got up? What are the facts? Men should be a little 
careful in making such accusations as these; unless, indeed, they care 
not whether they be true or false, being intended to answer the same 
purpose, whether the one or the other. This case was gut up, was it? 
By accident or design? In the exquisitely decorous and appropriate 
language of the Senator from New York, the Chief Justice of the United 
States and the Chief Magistrate of the Union were gambling at cards 
for the case, and Dred Scott was dummy in the imaginary game ! What 
truth is there in these insinuations of design? Why, sir, Dred Scott 
had sought his freedom by the assertion of his rights in the State 
courts of Missouri years before the Kansas-Nebraska act was ever sug- 
gested, and years before the President of the United States was even a 
candidate for office; years before he was even Minister to England. 

This case was determined in the supreme court of the State of Mis- 
souri, in 1852, adversely to Dred Scott, and was remanded to the lower 
court for further trial. Mr. Buchanan had, I believe, not then gone to 
England. The Kansas bill had not been heard of, and was not in the 
imagination of any man. When the case got back into the lower court, 
the counsel for Dred Scott, finding that the opinion oii the supreme court 
of the State was adverse to his rights, withdrew his case from the State 
court, and endeavored to better his client's chances by going into 
another jurisdiction. That is the way the case got into the Federal court ; 
and when was this? The case was carried into the Federal court in the 
city of St. Louis, in November, 1853, before even the meeting of the 
Congress which passed the Kansas-Nebraska act ; of course months be- 
fore Mr. Dixon, the Senator from Kentucky, first sprang upon the 



25 

country, by his amendment, the question in relation to the repeal of the 
Missouri compromise. Here is the record: 

''Be it remembered that heretofore, to wit : on the second day of November, in the year of 
our Lord 1853, came the above named plaintiff, Dred Scott, by his attorney, and filed" in the 
clerk's office of the circuit court of the United States for the Missouri district, the following 
declaration against the defendant, John F. A. Sandford." 

Was that a case gotten up "by design, between the President and the 
court here? It was never carried there until they had lost all chance in 
the State court; it was carried there as the last desperate resource of 
defeated counsel; eager to maintain what he conceived to be the rights 
of his client. Who was the counsel? The Senators from Missouri can 
tell us who R. M. Field, of St. Louis, is, and probably they will verify 
the assertion which I make here upon hear-say — I give it only upon 
hear-say — that he is one of the most determined Free-Soilers in the 
State of Missouri; has always declined to vote at elections until he was 
able to cast his vote for a Free-Soil candidate, and until he aided in the 
election of the Free-Soil Representative from the St. Louis district who 
now sits in the other Chamber. 

This case, thus instituted in November, 1853, was determined in 
the court below, and a writ of error was taken to the Supreme Court of 
the United Spates, before the Kansas bill was passed, and whilst Mr. 
Buchanan was in England! When it reached the Supreme Court of 
the United States what became of it ? What does the Senator from 
New York say became of it ? 

"The counsel who had appeared for the negro had volunteered from motives of charity, and, 
ignorant of course of the disposition which was to be made of the cause" 

— which the Senator had previously insinuated was gotten up by 
design — 

— "had avpued that his client bad been freed from slavery by operation of the Missouri pro- 
hibition of 1820. The opposing counsel, paid by the defending slaveholder" 

I happen to know, however, whatever may be the fact with the other, 
that one of the opposing counsel was not paid by any slaveholder at all; 
that one of the opposing counsel volunteered as amicus curio:' by virtue 
of his position as head of the bar of the Supreme Court of the United 
States, by virtue of his position as ex-Attorney General of the LTnited 
States, by virtue of his position as a compeer of the honorable Senator, 
and his former colleague on this floor from the State of Maryland, Mr. 
Reverdy Johnson. That gentleman volunteered in the case as amicus 
cni-ice, because the whole section of the country to whose interests he 
had been devoted from his birth had an interest in this great question 
to be decided, and which, at the time of his volunteering in the case, 
he did not yet know to be represented by counsel. The honorable Mr. 
Geyer, of Missouri, afterwards entered his name of record, and appeared 
for the defendant. 

Says the Senator from New York: 

"The opposing counsel, paid by the defending slaveholder, had insisted, in reply, thai 
famous statute was unconstitutional. The mock debate had been heard in the chamber of the 
court in the basement of the Capitol, in the presence of the curious visitors at the seal of Gov- 
ernment, whom the dulness of a judicial investigation could not disgust. The court did not 
hesitate to please the incoming President" 



26 

Where are we, sir, that such language as this is used? Is this the 
Senate of the United States, and are we here the embassadors of coequal 
sovereignties, to be insulted by language like this? Is .not this an in- 
sult to every one of us, direct and personal ? 

"The court did not hesitate to ph'ise the incoming President by seizing this extraneous and idle 
forensic discussion, and converting it into an occasion for pronouncing an opinion that the 
Missoi '"'' was void, raid that, by force of the Constitution, slavery existed, with 

all thi of properly in man over man. in all the Territories of the United States, para- 

mount to any popniai sovereignly within the Territ kto the authority of Congress 

itself. 

* • * ■ * * *•'■*.>* 

"The day oi inauguration came—the first one among ali the qelebjratiohs of that great na- 
tional pageant that was to be desecrated by a coalition between the executive and judicial de- 
partment, to undermine the National Legislature and the liberties of the people." 

Is there a solitary word of truth in this? Not one. Is a solitary fact 

alleged? Not one; but a broad and naked charge is made, which is 

intended to stamp infamy upon characters hitherto beyond the breath 

of reproach. Shame, shame upon the Senator that makes such charges 

as these, and has no proof to support them. 

"The President, attended by the usual lengthened pro arrived and took his seat on 

the portico. The Supreme Court attended him there, in robes which yet exacted public rever- 
ence. The people, unaware oi the import of the whisperings carried on between the President 
and the Chief Justice, and imbued with veneration for both, filled the avenues and gardens far 
away as the eye could reach. The President addressed them in words as bland as those which 
the worst of all the Roman Emperors pronounced when he assumed the purple. He announced 
(vaguely, indeed, but with self-satisfaction) the forthcoming extra-judicial exposition of the 
Constitution, and pledged his submission to it as authoritative and final." 

Does anybody find that in the President's inaugural? Does anybody 
find in the President's inaugural anything on this point, except that he 
learns the question is to be decided by the highest tribunal of the land, 
and that he, as every other good citizen is, is willing to render obedience 
to that tribunal ? 

"A few days later, copies of this opinion were multiplied by the Senate's press, and scat- 
tered, in the name of the Senate, broadcast over the land, and their publication has not yet 
been disowned by the Senate." 

As if we were going to disown publishing the opinions of the Supreme 
Court of the United States. 

"Simultaneously, Dred Scott, who had played the hand oi dummy in this interesting polit- 
ical game, unwittingly, yet to the complete satisfaction of his adversary, was voluntarily 
emancipated; and thus received from his master, as a reward, the freedom which the court 
had denied him as a right." 

Now, does not the Senator from New York know, was it not pub- 
lished in every newspaper in the country, that the slave's master had 
died? Was it not known that the man who emancipated the slave was 
a Black-Republican compeer in the other house, of the Senator of 
New York, [Mr. Chaffee, of Massachusetts,] who was forced to give 
this emancipation after having long hesitated, by the indignant denun- 
ciations of the fellow-Republicans around him. Everybody knows that, 
and yet here we are told by the Senator that this gift of freedom to the 
slave was the reward granted by his master, the defendant, for playing 
the hand of dummy in a game of cards — a political game — with the 



21 

venerable Chief Justice and Chief Magistrate of the Union. Shame, 
shame once more, upon the Senator who makes charges like these, 
without the shadow of ground for their support. 

Mr. President, I am tired. I have no doubt that others are too. I 
have gone so much at large into these collateral subjects that, so tar as 
regards the simple question before us, w to the admission of Kansas 
under this constitution, what I have to say is little indeed. The sub- 
ject has been exhausted, thoroughly bo, admirably so, this morning, 
by the honorable Senator from Missouri. I will, however, make one or 
two suggestions and close. 

I take the ground that the Congress of the United States is not 
bound to give to the people of » Territory any more protection than 
they arc willing to receive. I take the ground that about eighteen 
months ago the Congress of the United States listened to the complaint 
of the present rebels in Kansas, who said to ua this: "A band of armed 
marauders lias invaded us from a neighboring State; they have posses- 
sion of our Territorial Legislature; they have passed a law by which 
they are about to call together a convention to form a constitution for 
the new State of Kansas; they will not allow ua to vote fairly; we are 
a majority, and >ur relief there is no help for us." 

They asked us then to admit them as a State into the Union under the 
Top stitutipn, as the best of all possible remedies against the 

usurpations pf which they complained. At that time the Territorial 
Jslaiure had inaugurated the schenn for the adoption of a constitu- 
tion. The law for culling a convention had been passed. They were 
ut to vote for delegates. That was the precise time in which this 
vaunted maj filers in Kansas approached the Congress of 

United . itb complaints that they were down -trodden. 

What did i lie .Senate of the United States reply? The Democrats 
were in a, majority here, and they said: "It may be .hat what you say 
rue; it may be that you arc down-trodden and oppressed in violation 
you assert it yourselves, and you have complaisant advocates 
here on this floor to prove it; but it is no remedy for that, that we 
shall admit you as a State into this family of States, under a constitu- 
tion formed by one party in the Territory. We cannot do that. You 
say that if the territorial law is carried out, a constitution will be formed 
by the other party alone. Come now, we will do justice to both sides; 
we will pass a law by which all shall be protected, Free-Soilers and 
Democrats, by the strong arm of the Federal Government, by which 
you shall be free all to vote, free all to exercise this vaunted popular 
sovereignty, free all bo make manifest to the nation that great majority 
which you boast,'* The Senator from Georgia elaborated a bill for 
the purpose with the greatest possible care; and every possible safe- 
trd that human ingenuity could throw around the rights, of these 
people to pr< m from invasion was there employed. ^ Every Sena- 

tor on this side suggested amendments; and when the bill finally passed 
the Senate, it extorted from the Senator from New Hampshire [Mr. 
Hale] the admission that it was fair, that it was unexceptionable; "give 
us that, and we are content." 



m 

Now, what occurred? In the progress of the debate upon that hill 
the leaders of this Republican party in the Territory informed their ad- 
vocates here, in both branches of Congress, that that would not suit 
them; that it would put a stop to violence; that it would put a stop to 
uproar and confusion; and that thus the Black Republican candidate 
for the Presidency would be in a vt'ry lean minority, as the injured 
form of "bleeding Kansas" could not be presented to the eyes of the 
people during the impending canvass. So, sir, after the Democratic 
party— being in a majority in this Hall— had passed the bill to do jus- 
tice to these men, and sent it to the other House, they, who now stand 
up for the outraged rights of these down-trodden people, defeated the 
bill; themselves prevented the protection which they now say it was 
our duty to give; and then tell us here to-day that it would be a mon- 
strous outrage to admit Kansas into the Union with the constitution 
which the people formed under their own legislation. Both modes 
were before them; the Territorial Legislature was proceeding to pass 
enactments which were to result in the formation of a constitution for 
the new State, and the Republican party— the Free-Soil party— was 
imploring us for help. We told them, ''choose now between the terri- 
torial legislation, and take your own chances at the polls; or take the 
full, strong, firm protection of the Government of the United States, 
which is now tendered you." They refused the latter. They said 
they would have Topeka or nothing; and having taken that choice, 
nothing, with my consent, shall they have. Topeka! Topeka! that 
miserable rabble of insurgents; , a wretched raking togetherof men the very 
scum of the large northern cities, seeking naught but violence and blood- 
shed; presuming to set up their populace law, their, will, against the 
government of this country; presuming to come and dictate to the 
Congress of the United States, " you shall do this or we will fight; 
you shall give us this Topeka constitution, or there shall be blood- 
shed." Miserable, miserable, indeed, would be our dereliction from 
duty; despicable, indeed, would fall the Congress of the United States 
if it grounded arms and bowed in submission to the insurgent violence 
of these traitors. Every law that has been passed for their protection 
has been scorned by them. Every attempt to give them full and ade- 
quate maintenance of their rights has been repudiated. Now, again, 
the attempt is made to make us do what they please, to sacrifice all 
rights to their threats of violence; and we are again told, upon this 
floor, where a cheap display of valor is made, that they will be cowards 
if they do not fight for their rights; and some Senators even insinuate 
an intention of going to help them. Mr. President, the day of that 
fight will never come, and the vaunt costs nothing. 

The territorial legislation has gone into effect in the absence of con- 
gressional legislation, which they refused. All the forms of law, 
which gentlemen around me so deride, but which I respect, have been 
observed, and the last and sole question that remains for us is, shall 
Kansas still be "bleeding Kansas?" shall she still continue to display 
her wrongs and to cry aloud to the people of the land during another 
presidential canvass, or shall that noise be hushed forever? That is 



29 

the sole question, sir. The object is to keep up the excitement for an- 
other canvass. We say to these men, you shall not do it. . Their ob- 
ject is to keep the people of this country constantly inflamed and exci- 
ted. They shall not succeed in it. And now, now the great wrong 
and outrage that is to be done to this community is to admit her as a 
State into the Confederacy! Great Heavens! they are crying all around 
us, "What an outrage! what, an outrage!" "The history of the world 
has never seen anything like this " 

This outrage, this horrible wrung, consists in admitting them into 
the Union! That is all, all. Who is to organize this State govern- 
ment? Who is to administer it? Who will have supreme power over 
it, uncontrolled by congressional intervention, uncontrolled by the 
Federal bayonet? The people of Kansas; none but the people of Kan- 
sas. What a foul wrong it is to give them sole control of their own 
affairs! The Senator from Illinois [Mr. Douglas] would have us be- 
lieve that this is an abandonment of the principle of popular sover- 
eignty. Mr. President, it is its very essence; it is carrying out it%true 
intent and meaning. Let any man here tell me what higher, what 
more exalted example can be afforded of the right of a people to gov- 
ern its own institutions, than that which is given by the people of a 
sovereign State of this Confederacy. That is the right we now want 
to bestoWpUpon Kansas. . That is the legitimate fruit of the Kansas bill. 
That is tlje act now before us. For that act I will vote. 



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